Arkens v. County of Sutter

          MEMORANDUM AND ORDER RE: MOTION TO DISMISS

          WILLIAM B.SHUBB UNITED STATES DISTRICT JUDGE.

         Plaintiff James Arkens brought this wrongful termination and discrimination action against defendants the County of Sutter (the “County”), County Board of Supervisors Ron Sullenger, Jim Whiteaker, and Dan Flores, and County Auditor Nate Black. Defendants now move to dismiss plaintiff’s Complaint for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6).

         I. Factual and Procedural Background

         The County hired plaintiff as its Chief Administrative Officer (“CAO”) on January 1, 2013 for a term of three years. (Compl. ¶ 17, Ex. A (Docket No. 1).) Between March 2013 and July 2014, plaintiff and Supervisor Sullenger had a strained working relationship after Sullenger allegedly requested certain health and retirement benefits that plaintiff explained could not be provided. (Id. ¶¶ 23-26.) In April 2015, County Auditor Black informed the auditors, County Counsel’s Office, the District Attorney, and Sullenger that plaintiff had allegedly embezzled $2.5 million from a County energy project. (Id. ¶¶ 32-34.) The following month, the Board of Supervisors (the “Board”) allegedly took plaintiff’s performance evaluation off the agenda because of the embezzlement accusations. (Id. ¶ 27.) Plaintiff and Supervisor Whiteaker’s working relationship allegedly deteriorated shortly thereafter. (Id. at ¶ 29.) In July or August of 2015, plaintiff allegedly informed Supervisor Flores that a contemplated land purchase presented a conflict of interest for Flores and other county officials. (Id. ¶ 37.)

         In September 2015, plaintiff went on medical leave because he was experiencing frequent panic attacks and “felt very awkward because of the daily treatment by his superiors and County Officials.” (Id. ¶ 46.) On October 15, 2015, without providing plaintiff an opportunity to rebut the embezzlement accusations, the Board informed plaintiff that it did not intend to renew his contract and allegedly told him that, “if he did not immediately accept the County’s Offer to resign, he would be placed on Administrative leave.” (Id. ¶ 20.) Plaintiff was placed on administrative leave and was allegedly constructively discharged. (Id. ¶¶ 22, 46.)

         In addition to the embezzlement accusations, the Board allegedly placed plaintiff on administrative leave and decided not to renew his contract because of plaintiff’s age. (Id. ¶¶ 61-62.) Prior to placing plaintiff on administrative leave, several Supervisors allegedly “made comments” about plaintiff’s age and “commented out loud” about when he would retire. (Id. ¶ 42.)

         Plaintiff initiated this action in May 2016 and asserts claims for (1) wrongful discharge in violation of public policy against all defendants; (2) defamation against the County and Black; (3) violation of the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. §§ 621-634, against the County, Sullenger, Whiteaker, and Flores; (4) “federal and state retaliation” against all defendants; (5) intentional infliction of emotional distress against all defendants; and (6) negligent infliction of emotional distress against all defendants. Defendants now move to dismiss the Complaint in its entirety pursuant to Rule 12(b)(6).

         II. Analysis

         On a motion to dismiss under Rule 12(b)(6), the court must accept the allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds by Davis v. Scherer, 468 U.S. 183 (1984); Cruz v. Beto, 405 U.S. 319, 322 (1972). To survive a motion to dismiss, a plaintiff must plead “only enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff’s obligation to provide the ‘grounds’ of his entitle[ment] to relief’ requires more than labels and conclusions . . . .” Twombly, 550 U.S. at 555 (alteration in original) (citations omitted). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice, ” and “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678.

         “The plausibility standard is not akin to a ‘probability requirement, ’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. “Where a complaint pleads facts that are merely consistent with a defendant’s liability, it stops short of the line between possibility and plausibility of entitlement to relief.” Id. (internal quotation marks and citation omitted). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.

         1. Official versus Individual Capacity

         Defendants contend that the claims against the individual defendants should be dismissed because plaintiff sued those defendants in their official capacities. (See Compl. ¶¶ 12-15.) Although unnecessary disputes and confusion frequently arise based on the capacity in which a defendant is sued in the complaint, determining the appropriate capacity from the allegations in the complaint is neither impossible nor difficult. Simply stated, if a plaintiff seeks to have a public officer pay damages, the suit is generally against the officer in his individual capacity; and if the plaintiff seeks to have the public officer perform an official act, the suit is generally against the officer in his official capacity. See Price v. Akaka, 928 F.2d 824, 828 (9th Cir. 1990); Biggs v. Meadows, 66 F.3d 56, 61 (4th Cir. 1995). Because of this distinction, a majority of the circuits have rejected the argument that a plaintiff is required to allege the capacity in which a defendant is sued. Biggs, 66 F.3d at 59. Instead, the majority approach “look[s] to the substance of the plaintiff’s claim, the relief sought, and the course of proceedings to determine the nature of a [] suit . . . .” Id. (citing cases from the Second, Fifth, Seventh, Ninth, Tenth, and Eleventh circuits).

         The only relief plaintiff specifically requests in his prayer for relief is damages, ^[1] and plaintiff can seek damages against the officers only in their individual capacities. The court will therefore treat plaintiff’s claims for damages against Sullenger, Whiteaker, Flores, and Black as against them in their individual capacities.

         2. Tamney Claim

         Under the California Supreme Court’s decision in Tameny v. Atlantic Richfield Co., “when an employer’s discharge of an employee violates fundamental principles of public policy, the discharged employee may maintain a tort action and recover damages traditionally available in such actions.” 27 Cal.3d 167, 170 (1980). Pursuant to California Government Code subsection 815(a), however, “[a] public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person, ” unless otherwise provided by statute. Cal. Gov’t Code § 815(a). Because a common law claim for wrongful termination in violation of public policy was judicially-created in Tameny and is not codified in any statute, subsection 815(a) bars the claim against public entities. Miklosy v. Regents of Univ. of Cal., 44 Cal.4th 876, 900 (2008).

         While section 815 does not similarly limit the liability of individual defendants, “a Tameny action for wrongful discharge can only be asserted against an employer, ” thus “[a]n individual who is not an employer cannot commit the tort of wrongful discharge in violation of public policy.” Id. In his opposition, plaintiff nonetheless argues that defendants fail to “distinguish between the individual defendants who are merely supervisory or management employees of defendant County of Sutter and those individual defendants who are elected officials and policy-makers of County of Sutter.” (Pl.’s Opp’n at 5:10-15 (Docket No. 10).) Plaintiff does not, however, cite a single case suggesting that such a distinction is relevant under a Tamney claim. In fact, whether an official has policymaking authority is relevant in other ...